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presenting facts occurring during the pendency of the action. And it is almost a matter of course, in the sound discretion of the court, to allow a supplemental complaint to be filed, if the application is promptly made, and as soon as the necessity is ascertained. It is, however, the duty of the court, upon the application, to consider all the circumstances, and to grant or refuse it, as may be just and proper in the particular case, and the application should therefore be upon notice, so that both parties may be heard." The application should in all cases be denied where the same object could be accomplished in another pending suit.10 A supplemental pleading is governed by all the rules applicable to an original pleading of a similar character," and there is, of course, no propriety in inserting in a supplemental complaint or petition any new allegations other than those material to the cause of action.12 As illustrating the office of a supplemental complaint, it has been allowed for the purpose of setting up additional installments on the same contract, falling due after the commencement of the action; 13 in replevin for sheep, a supplemental petition was allowed, asking damages for the increase in lambs, and for the wool shorn from the flock subsequently to the commencement of the action; 1 so, in an action for libel, a supplemental complaint was allowed, setting up the circulation of the libel by the defendants, prior and subsequent to the commencement of the action ;

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so, as

a general rule, if after the commencement of an action a third party becomes interested in the litigation by assuming the liabilities of the defendant, in respect to the claim which the plaintiff is seeking to enforce, it is proper to allow a supplemental complaint, bringing in such third party as a co-defendant.16 But in an action for divorce, the plaintiff was not allowed to file a sup

plemental complaint, setting up acts of infidelity on the part of the defendant, which occurred after the commencement of the action.17

1 Hasbrouck v. Shuster, 4 Barb. 285; Penman v. Slocum, 41 N. Y. 53, 60; McCaslan v. Latimer, 17 S. C. 123.

2 Dillman v. Dillman, 90 Ind. 585.

3 Wetmore v. Truslow, 51 N. Y. 338; Carney v. Taylor, 4 Kan. 178; Wattson v. Thibou, 17 Abb. Pr. 184; Holly v. Graff, 29 Hun, 443.

4 Tiffany. Bowerman, 2 Hun, 643; Cohn v. Husson, 5 Civ. Proc. R. 324; Buckley v. Buckley, 12 Nev. 423; Moon v. Johnson, 14 S. C. 434.

5 Lowry v. Harris, 12 Minn. 255; Bostwick v. Menck, 4 Daly, 69; Smith v. Smith, 22 Kan. 699; Muller ". Earle, 5 Jones & S. 388. And see Lampson v. McQueen, 15 How, Pr. 345; Hendricks v. Decker, 35 Barb. 298; Hall v. Olney, 65 Barb. 27.

6 Buckley. Buckley, 12 Nev. 423; Gibbon v. Dougherty, 10 Ohio St. 365, 372; Tiffany v. Bowerman, 2 Hun, 643; Slauson v. Englehart, 34 Barb. 198; Buchanan v. Comstock, 57 Barb. 582; Milner v. Milner, 2 Eaw. Ch. 114; Wisner v. Ocumpaugh, 71 N. Y. 113.

7 Hoyt v. Sheldon, 4 Abb. Pr. 59; 6 Duer, 661; Hornfager v. Hornfager, 6 How. Pr. 13; Ormsbee v. Brown, 50 Barb. 436.

8 Palmer v. Murray, 18 How. Pr. 545; Medbury v. Swan, 46 N. Y. 200; Sage v. Mosher, 17 How. Pr. 367; Latham v. Richards, 15 Hun, 129. And see Spears v. Mayor etc. 72 N. Y. 442; Lyon v. Isett, 42 How. Pr. 155; 11 Abb. Pr. N. S. 353; McDonald v. Davis, 12 Hun, 95.

9 Fleischman v. Bennett, 79 N. Y. 579. Compare Garner v. Hannah, 6 Duer, 262; Fisk v. Álbany etc. R. R. Co. 8 Abb. Pr. N. S. 309. 10 Sage v. Mosher, 17 How. Pr. 367. And where the matter proposed to be added by a supplemental complaint is a cause of action not connected with the original cause of action, and the plaintiff's rights can be enforced by a new action, the motion to allow the fil ing of a supplemental complaint will be denied: West v. Burns, 2 Month. Law Bull. (N. Y.) 55.

11 Dann v. Baker, 12 How. Pr. 521; Goddard v. Benson, 15 Abb. Pr. 191.

12 Bowery Nat. Bank v. Duryee, 55 How. Pr. 88; 74 N. Y. 491.

13 Fincke v. Rourke, 20 Hun, 264; Mill v. Jones, 5 Neb. 500. Compare Holly v. Graff, 29 Hun, 443; Whiting v. Eichelberger, 16 Iowa, 422

14 Buckley v. Buckley, 12 Nev. 423.

15 Corbin v. Knapp, 5 Hun, 197.

16 Prouty v. Lake Shore etc. R. R. Co. 85 N. Y. 272. Compare Ervin v. Oregon Railway etc. Co. 28 Hun, 269; 16 N. Y. Week. Dig. 137; Angell v. Lawton, 14 Hun, 70; 76 N. Y. 540.

17 Morange v. Morange, 2 Month. Law Bull. (N. Y.) 30. And see Milner v. Milner, 2_Edw. Ch. 114; Hoffman v. Hoffman, 35 How. Pr. 384; Robertson v. Robertson, 9 N. Y. Week. Dig. 348. In an action for a divorce from bed and board, the plaintiff may be allowed to file a supplemental complaint, setting forth acts of cruel and inhuman treatment, alleged to have been committed by the defendant since the time of the commencement of the action. They are admissible to give color to, and to explain other matters put in issue by the pleadings: Cornwall v. Cornwall, 30 Hun, 573.

CHAPTER III.

DEMURRER TO COMPLAINT OR PETITION.

41. Nature of a demurrer in general.

42. Effect of demurrer.

43. Demurrer confined to face of complaint or petition.

44. Objections must be specific.

45. Effect of not demurring.

46. Waiver or abandonment of demurrer.

47. Want of jurisdiction.

48. Want of capacity to sue.

49. Another action pending.

50. Misjoinder of parties.

51. Defect of parties.

52. Causes of action improperly united.

53. No cause of action.

54. Ambiguity, etc.

55. Demurrer bad in part.

56. When demurrer adjudged frivolous.
57. Amendments after decision of demurrer.

41. Nature of a demurrer in general. The office of a demurrer in common-law pleading is to deny the legal sufficiency of the allegations demurred to. A demurrer is not itself a pleading in the general acceptation of the term, but rather an excuse for not pleading. It is in effect a declaration that the party demurring will go no further, because the other party has shown nothing againt him. It raises a question of law which is referred to the court for its decision. The party putting in a demurrer admits the truth of all such matters of fact as are correctly pleaded, but denies their legal sufficiency, thus referring the law arising on these facts to the judgment of the court.5 And the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it.6 Demurrers were either general or special: the

former applying to matters of substance, the latter to matters of form, the particular defect being specifically pointed out and insisted upon as the cause of demurrer.' Under the Code system, a demurrer is called a pleading, and the demurrer and the answer are the only forms of pleading which a defendant can adopt, and the demurrer can only be adopted in the particular cases prescribed by the statute.10 It is proper to regard a demurrer now as a pleading created, with its character and office defined, by the Code of the particular State or Territory."1 Its very nature and office, as known to the former practice, have been essentially changed, and defects which under that practice were waived, unless pleaded in abatement, are now legitimate grounds of demurrer, while other defects, which were once well recognized grounds of demurrer, are now remedied on motion or wholly disregarded.12 In short, no pleading is demurrable under the Code system, unless it is subject to one or more of the objections specifically pointed out in the statute as grounds of demurrer.13

1 Nowlan . Geddes, 1 East, 634; Hobson v. McArthur, 3 McLean, 241; Hall v. Bartlett, 9 Barb. 297. And see 3, ante.

2 Gayle v. Smith, Minor, 83.

3 Co. Litt. 71 b.

4 United States v. Arnold, 1 Gall. 348; Governor v. Lindsay, 14 Ala. 658; Henderson v. Stringer, 6 Gratt. 130; Roberts v. White, 3 Wis. 414.

5 Chapin v. Curtis, 23 Conn. 388; Havens v. Hartford etc. R. R. Co. 28 Conn. 69; Matthews v. Tower, 39 Vt. 433; Coxe v. Gulick, 10 N. J. L. 328; Bobe v. Frowner, 18 Ala. 89; Branham v. Mayor etc. 24 Cal. 602,

6 Keay v. Goodwin, 16 Mass. 1; Frost v. Hammatt, 11 Pick. 75; Ward v. Stout, 32 III. 399; Calais v. Bradford, 51 Me. 414; Commonw. v. Pittsburg etc. R. R. Co. 58 Pa. St. 26; Bishop . Quintard, 18 Conn. 395; Gorman v. Lennox, 15 Peters, 115; Lipe v. Becker, 1 Denio, 568; Hooker v. Gallagher, 6 Fla. 351.

7 See Co. Litt. 72 a; Archb. Civ. Plead. 310; Commonw. v. Cross Cut R. R. Co. 53 Pa. St. 62; Jackson v. Rundlet, 1 Wood. & M. 381; Stewart v. Dearing. 13 Phila. 175; Drais v. Hogan, 50 Cal. 127; Steamboat Reveille v. Case, 9 Mo. 498.

8 See N. Y. Code Civ. Proc. 487; Howard . Michigan etc. R. R. Co. 5 How. Pr. 206; Oliphant v. Whitney, 34 Cal. 25.

Proc.

9 N. Y. Code Civ. 487; De Witt v. Swift, 3 How. Pr. 283; N. C. Code Civ. Proc. 94; Ransom v. McClees, 64 N. C. 17.

10 De Witt v. Swift, 3 How. Pr. 283; Beale v. Hayes, 5 Sand. 640; Harper v. Chamberlain, 11 Abb. Pr. 234.

11 Manchester v. Storrs, 3 IIow. Pr. 410.

12 De Witt v. Swift, 3 How. Pr. 280; 1 Code Rep. 24; 6 N. Y. Leg. Obs. 314. And see Prindle v. Caruthers, 15 N. Y. 425; Ward v. Ward, 5 Abb. Pr. N. S. 145; Bostwick v. Dry Goods Bank, 67 Barb. 449; Johnston Harvester Co. v. Bartley, 94 Ind. 131; Williamson v. Yingling, 93 Ind. 42; Wright v. Williams, 83 Ind. 421; Carter v. Ford Plate Glass Co. 85 Ind. 180; Union Bank v. Bell, 14 Ohio St. 200, 208; Bushey v. Reynolds, 31 Ark. 662; Dyer v. Jacoway, 42 Ark. 193,

13 Marie v. Garrison, 83 N. Y. 14. And see Getty v. Hudson River R. R. Co. 8 How. Pr. 177; Dunn v. Barnes, 73 N. C. 273; Hentsch v. Porter, 10 Cal. 555. Compare McClary v. Sioux City etc. R. R. Co. 3 Neb. 44. No demurrer lies to supplemental complaint: Derry v. Derry, 98 Ind. 319; Morey v. Ball, 90 Ind. 450.

42. Effect of demurrer.- Under the Code system of pleading, as well as at common law, a demurrer is in effect a declaration that the party will go no further, because the other has shown nothing against him.1 The office of a demurrer is to raise issues of law upon the facts stated in the pleading demurred to;2 and it admits the truth of the facts that are relevant and well pleaded, so far as is necessary to determine the question raised. But mere statements of legal conclusions are not admitted; thus, averments in a complaint as to the meaning or contents of a paper set forth therein, or annexed to and made part thereof, are not admitted by a demurrer. It is however held, that a demurrer remaining upon the record of the court is an admission of the facts stated in the pleading to which it is interposed, not only for the purposes of the argument, but as evidence upon the trial of the issues to which the pleading demurred to relates.

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1 Webb v. Vanderbilt, 7 Jones & S. 4; IIerfort v. Cramer, 7 Colo. 483. 2 Freeman v. Frank, 10 Abb. Pr. 370; Bradley v. Rodelsperger, 17 S. C. 9; Brennan e. Ford, 46 Cal. 7; Brooks . Gibbons, 4 Paige, 374; Wilson v. Mayor etc. 15 How. Pr. 502.

3 Branham r. Mayor etc. 24 Cal, 602; Levy v. Curtis, 1 Abb. N. C. 189; Standish v. Dow, 21 Iowa, 363; Griggs v. City of St. Paul, 9 Minn. 246; Blake. Griswold, 63 N. Y. 294; Hance v. Hair, 25 Ohio St. 849; Van Doren v. Tjader, 1 Nev. 380; Freeman v. Hart, ci Iowa, 525.

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